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2023 Supreme(Pat) 456
IN THE HIGH COURT OF JUDICATURE AT PATNA
P.B. BAJANTHRI, ARUN KUMAR JHA, JJ.
Bimal Kumar Mandal, son of late Fuldeo Mandal – Appellant
Versus
The State Of Bihar through the Secretary to the Government, Department of Law and Ors. - Respondents
Letters Patent Appeal No.917 of 2018 In Civil Writ Jurisdiction Case No.11318 of 2016
Decided On : 09-01-2023
For the Appellants : Mr. Rajeev Roy, Mr. Amrendra Kumar Sinha No.-1, Mr. Shashank Shekhar Sinha.
For the Respondents: Mr. Gyan Prakash Jha, Mr. Gopal Krishna.
The central legal point established in the judgment is that the removal of a Public Prosecutor without providing an opportunity of hearing and without analyzing the appellant's explanation violates principles of natural justice.
Headnote:
Public Prosecutor - Removal from Service - Paragraph No.143 of Bihar Practice and Procedure Manual - Appellant's explanation - Violation of principles of natural justice
Fact of the Case:
The appellant, a Public Prosecutor, was removed from his post based on alleged allegations without being provided an opportunity of hearing. The competent authority did not analyze the appellant's explanation before the removal.
Finding of the Court:
The court found that the removal of the appellant without providing an opportunity of hearing and without analyzing the appellant's explanation amounted to a violation of principles of natural justice.
Issues: Violation of principles of natural justice, applicability of Bihar Practice and Procedure Manual
Ratio Decidendi: The court held that the removal of a Public Prosecutor without providing an opportunity of hearing and without analyzing the appellant's explanation violated principles of natural justice.
Final Decision: The court set aside the order of removal and the order of the learned Single Judge, allowing the appellant to receive arrears/difference of salary/consolidated pay or remuneration attached to the post of Public Prosecutor for the intervening period.
JUDGMENT :
(P.B. Bajanthri, J.)
The present L.P.A. is filed assailing the order of the learned Single Judge dated 11.05.2018 passed in C.W.J.C. No. 11318 of 2016.
2. The appellant was appointed as a Public Prosecutor on 31.07.2015 and his tenure was up to the month of July, 2018. On 11.06.2016, there were a news item in respect of recommendation to remove the services of the appellant by the concerned District Magistrate. In this regard, the appellant is stated to have submitted his explanation on 19.06.2016 to the competent authority. The competent authority proceeded to remove the services of the appellant on 28.06.2016. Hence C.W.J.C. No. 11318 of 2016 was presented in so far as questioning the removal order.
3. Learned counsel for the appellant submitted that no notice has been issued before removal from service on 28.06.2016. Further, the explanation has not been cited and analyzed by the competent authority before taking a decision to remove the appellant from the post of Public Prosecutor. The learned Single Judge has not appreciated the aforementioned contentions. It is also submitted that removal from the post of Public Prosecutor is based on the alleged allegations and it is stigmatic in nature.
4. Per-contra, learned counsel for the respondents resisted the aforesaid contention and submitted that in the light of paragraph No.143 of Bihar Practice and Procedure Manual, appellant is not entitled to notice before removing him from the post of Public Prosecutor. It is further submitted that the competent authority was processing the issuance of show-cause notice proposal to remove the appellant from the post of Public Prosecutor, in the meanwhile, appellant had submitted his explanation on 19.06.2016 with reference to news item dated 11.06.2016, therefore, the competent authority has taken a decision to waive off the procedure of issuance of notice to the appellant. Hence no infirmity is forthcoming from the order of removal and the order of the learned Single Judge.
5. Heard learned counsel for the respective parties.
6. The appellant was appointed as a Public Prosecutor on 31.07.2015 and his tenure was up to the month of July, 2018. In the meanwhile, there were certain alleged allegation by the District Magistrate in so far as discharging the functions of the post of Public Prosecutor by the appellant. Based on such news item, the appellant in order to defend his action read with the news item, he had submitted his explanation on 19.06.2016. Ignoring the explanation, the respondents proceeded to remove the appellant from the post of Public Prosecutor on 28.06.2016. The learned Single Judge proceeded to dismiss the petitioner’s C.W.J.C. No. 11318 of 2016 on 11.05.2018.
7. Learned counsel for the appellant submitted that the appellant’s services have been removed from the post of Public Prosecutor based on certain alleged allegations and it is without providing opportunity of hearing. In other words, there is a violation of principles of natural justice. Further, the explanation dated 19.06.2016 has not been analyzed by the competent authority and discussed in the order of removal. The aforesaid material suffice to interfere with the order of learned Single Judge and order of removal from service.
8. Learned counsel for the respondents submitted that paragraph No.143 of Bihar Practice and Procedure Manual has been taken into consideration for the purpose of removing the appellant from the post of Public Prosecutor. Paragraph No.143 reads as under:-
143. Removal, suspension and other punishment. – Whenever a Collector shall see cause to recommend the removal or suspension from office or other punishment of a Government Pleader, he shall submit a report of the facts of the case to the Legal Remembrancer, either direct or through the Commissioner, and the Legal Remembrancer shall report the case for the orders of Government.
9. The aforesaid Bihar Practice and Procedure Manual is in respect of Government Pleaders, Government
